Russell v. Target Corporation
Filing
42
OPINION AND ORDER granting 35 Defendant's Motion for Final Summary Judgment. Judgment is entered in favor of Defendant, and Plaintiff shall take nothing. The Clerk shall enter judgment accordingly, terminate all pending motions and deadlines as moot, and close the file. See Opinion and Order for details. Signed by Judge John E. Steele on 11/18/2015. (MAW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ELISABETH RUSSELL,
Plaintiff,
v.
Case No: 2:14-cv-377-FtM-29CM
TARGET CORPORATION,
Defendant.
OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion for
Final Summary Judgment (Doc. #35) filed on September 11, 2015.
On
October 13, 2015, the Court directed Plaintiff, who is proceeding
pro se (Doc. #33), to file a response to the motion within twentyone days.
(Doc. #40.)
That Order warned Plaintiff “that a
decision on the pending motion for summary judgment could be
dispositive of the entire case,” that it is her burden “to dispute
the evidence presented by Defendant” in the motion, and that “[i]f
no response is filed, the Court will rule on the motion without
further notice and without the benefit of a response.”
(Id.)
On
October 21, 2015, Defendant filed a Notice (Doc. #41) stating that
Plaintiff had provided Defendant (but not the Court) with an
updated mailing address while she travelled out of state.
The
Notice further stated that Defendant served the Court’s Order (Doc.
#40) directing Plaintiff to respond to the Motion for Summary
Judgment on Plaintiff at her updated address.
(Id.)
Plaintiff
has not filed a response, and more than twenty-one days have
elapsed
since
both
the
Court’s
October
13,
2015
Order
and
Defendant’s Notice that they had served the Order on Plaintiff at
her
updated
address.
Therefore,
the
Court
will
consider
Defendant’s motion without the benefit of a response.
For the
reasons set forth below, the motion is granted.
I.
Plaintiff Elisabeth Russell (Plaintiff or Russell) has filed
a
two-count
Complaint
(Doc.
#2)
against
Defendant
Target
Corporation (Defendant or Target) alleging that Russell sustained
injuries due to a slip-and-fall that took place at a Target store
in Naples, Florida.
According to Russell, Target is liable for
her injuries because the slip-and-fall was caused by Target’s
negligence.
The relevant undisputed facts are as follows:
On October 27, 2012, Russell visited the Target store located
at 2415 Tarpon Bay Drive in Naples, Florida.
(Id. at ¶ 5.)
Prior
to her fall, Russell frequented that Target location two or three
times per week without incident.
(Doc. #35-1, p. 2.)
While in
the bakery section, Russell reached for a piece of cake and fell
when her right foot slipped out from under her.
(Id. at pp. 4-
6.) Before she fell, Russell did not observe anything on the floor
that may have caused her to slip.
(Id. at p. 5.)
Likewise,
Russell did not observe anything on the floor after her fall, or
at any other point in time.
(Id. at pp. 10, 13.)
2
Although Russell
assumes that there must have been something on the floor which
caused her to slip, she does not know what that substance was.
(Id. at pp. 10-15.)
Three Target employees responded to Russell
after her fall and visually inspected the floor where the incident
occurred.
(Id. at pp. 19-20, 23, 28.)
Each testified that they
found no liquid or other objects on the floor which could have
caused
Russell
to
slip.
(Id.)
In
addition
to
the
visual
inspection after the fall, Target employees conduct routine visual
inspections of the entire store floor, clean the floor daily, and
clean up reported spills.
The
Complaint
(Id. at p. 25.)
alleges
two
counts
of
negligence
against
Target. Count I alleges that Target breached its duty to “maintain
the premises in a reasonably safe condition,” and its duty to “warn
Plaintiff of all dangerous conditions.”
(Doc. #2, ¶¶ 8.)
Count
II alleges that Target breached its duty to “operate its business
in a non-negligent manner and implement methodology which does not
cause or contribute to the creation of dangerous conditions.” (Id.
at ¶ 13.)
Target now moves for summary judgment on both counts,
arguing that the undisputed facts set forth above are insufficient
to establish any breach of a duty owed to Russell.
II.
Summary
judgment
is
appropriate
only
when
the
Court
is
satisfied that “there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
3
law.”
Fed. R. Civ. P. 56(a).
“An issue of fact is ‘genuine’ if
the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”
Baby Buddies, Inc. v. Toys “R” Us,
Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).
A fact is “material”
if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“A
court must decide ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’”
Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir.
2004) (citing Anderson, 477 U.S. at 251).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.
Scott v. Harris, 550 U.S. 372, 380 (2007); Tana
v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).
However, “if
reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198
F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp.
Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983) (finding
summary judgment “may be inappropriate even where the parties agree
on the basic facts, but disagree about the factual inferences that
should be drawn from these facts”)).
“If a reasonable fact finder
evaluating the evidence could draw more than one inference from
4
the facts, and if that inference introduces a genuine issue of
material fact, then the court should not grant summary judgment.”
Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007).
III.
A cause of action based on negligence comprises four elements:
(1) a duty owed by the defendant to the plaintiff; (2) breach of
that duty; (3) a causal connection between defendant’s breach and
plaintiff’s injury; and (4) actual loss or damage.
Clay Elec.
Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003).
the second element is at issue here.
Only
Each of the Complaint’s two
counts is premised on Target’s duties to keep its premises free of
dangerous
conditions
and
conditions that do exist.
to
warn
patrons
of
any
dangerous
Thus, the existence of a dangerous
condition is a prerequisite to finding that Target breached either
duty.
Target argues that the undisputed facts are insufficient to
allow a jury to reasonably conclude that a dangerous condition
existed at the time Russell fell.
The Court agrees.
“Before there can be recovery for a slip and fall injury, the
allegations
defendant.”
must
show
some
negligence
on
the
part
of
the
Gordon v. Target Corp., No. 07-CV-80412, 2008 WL
2557509, at *7 (S.D. Fla. June 23, 2008).
Where, as here, a
defendant seeks summary judgment based upon the nonexistence of a
dangerous condition, it must be “conclusively proven that there
was no substance on the floor that was the proximate cause of
5
[plaintiff’s] injuries.”
Williams v. Sears, Roebuck & Co., 866
So. 2d 122, 123 (Fla. 4th DCA 2004).
Once a defendant has provided
such evidence, the burden then shifts to the plaintiff, who must
“show by reference to the record that there is indeed a genuine
issue of fact regarding [the defendant’s] alleged negligence.
Gordon, 2008 WL 2557509, at *7.
“Importantly, negligence may not
be inferred from the mere happening of an accident alone.”
Oken
v. CBOCS, Inc., No. 12-CV-782, 2013 WL 2154848, at *6 (M.D. Fla.
May 17, 2013) (quotation omitted).
Therefore, a plaintiff cannot
avoid summary judgment “merely by asserting that because she
slipped, it must be assumed or presumed that there had to be
something of a foreign nature on the floor that precipitated her
fall.”
Williams 866 So. 2d at 123-24; see also Gordon, 2008 WL
2557509, at *5 (granting summary judgment in favor of defendant
where “the Plaintiff has no idea what caused her to fall,” “there
is no record evidence of any other person, employee, or customer
who made such an observation,” and subsequent inspections for
foreign substances or debris “were negative”).
In Williams, the plaintiff fell in the garage of defendant’s
oil change business.
866 So. 2d at 123-24.
The plaintiff
testified that she was not aware of anything that caused her fall,
and instead asserted that there must have been a foreign substance
on the floor because she would not have slipped otherwise.
Id.
After the fall, defendant’s employee inspected the floor and found
6
no foreign substances.
affirmed
the
concluding
entry
that
introduction
of
the
the
Id.
of
The Fourth District Court of Appeals
summary
defendant
judgment
had
plaintiff's
own
“met
for
the
its
burden
testimony
defendant,
by
the
establishing
a
complete lack of knowledge as to whether anything may have caused
her fall,” “[c]oupled with an immediate examination of the subject
premises” that did not reveal an foreign substances or debris.
Id. at 124.
As in Williams and Gordon, Russell has provided no competent
evidence supporting the existence of a dangerous condition.
To
the contrary, she testified that she had no idea what, if anything,
caused her to fall.
provided
the
(Doc. #35-1, pp. 5, 10, 13.)
unchallenged
testimony
of
three
Target has
employees
who
inspected the area after Russell’s fall and found no foreign
substances, debris, or other dangerous condition.
20, 23, 28.)
(Id. at pp. 19-
Given this undisputed evidence, Russell’s testimony
that there must have been something on the floor simply because
her foot slipped is insufficient to create a genuine issue of fact
regarding Target’s alleged negligence.
Gordon, 2008 WL 2557509,
at *5; Williams, 866 So. 2d at 123-24.
Therefore, Russell cannot
prevail on her negligence causes of action and Target is entitled
to summary judgment.
Accordingly, it is now
ORDERED:
7
Defendant’s Motion for Final Summary Judgment (Doc. #35) is
GRANTED, judgment is entered in favor of Defendant, and Plaintiff
shall take nothing.
The Clerk shall enter judgment accordingly,
terminate all pending motions and deadlines as moot, and close the
file.
DONE AND ORDERED at Fort Myers, Florida, this
November, 2015.
Copies: Counsel of record
8
18th
day of
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